Citation Nr: 0801236
Decision Date: 01/11/08 Archive Date: 01/22/08
DOCKET NO. 06-17 127 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Huntington,
West Virginia
THE ISSUE
Whether new and material evidence has been presented to
reopen a service connection claim for arthritis of the
cervical spine and hands, to include as secondary to a
service-connected low back disability.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
WITNESSES AT HEARING ON APPEAL
Appellant and L.K., his spouse
ATTORNEY FOR THE BOARD
Thomas D. Jones, Counsel
INTRODUCTION
The veteran served on active duty from June 1971 to June
1975.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a July 2005 rating decision of a
Regional Office (RO) of the Department of Veterans Affairs
(VA), which denied the veteran's claim for service connection
for arthritis of the cervical spine and hands, claimed as
secondary to a service-connected low back disability.
In September 2007, the veteran and his spouse testified
before the undersigned Acting Veterans Law Judge, seated in
Washington, D.C.
The reopened issue of service connection for a disability of
the neck and hands is addressed in the REMAND portion of the
decision below and is REMANDED to the RO via the Appeals
Management Center (AMC), in Washington, DC.
FINDINGS OF FACT
1. In an unappealed rating decision issued in July 2002, the
RO denied service connection for degenerative joint disease
of the neck and hands. The veteran was so notified but did
not perfect an appeal; thus, that decision is final.
2. Evidence submitted since the last final rating decision
includes medical evidence of a current diagnosis of stenosis
of the cervical spine and a medical opinion that links said
diagnosis to service. This evidence relates to unestablished
facts necessary to substantiate the claim, and raises a
reasonable possibility of substantiating the claim of service
connection for a disability of the cervical spine and hands.
CONCLUSIONS OF LAW
1. The July 2002 rating decision denying service connection
for degenerative joint disease of the neck and hands is
final. 38 U.S.C.A. § 7105(c) (West 2002).
2. Evidence received since the July 2002 rating decision
denying service connection for degenerative joint disease of
the neck and hands is new and material, and the veteran's
claim thereto is reopened. 38 U.S.C.A. § 5108 (West 2002);
38 C.F.R. § 3.156(a) (2007).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
With respect to the claimant's claim, VA has met all
statutory and regulatory notice and duty to assist
provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A,
5106, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R.
§§ 3.102, 3.156(a), 3.159, 3.326 (2007). To the extent there
may be any deficiency of notice or assistance, there is no
prejudice to the appellant in proceeding with the issue on
appeal given the favorable nature of the Board's decision
with regard to the pending claim.
The veteran seeks to reopen his service connection claim for
a disability of the neck and hands. Service connection for
degenerative joint disease of the neck and hands was denied
within a July 2002 rating decision, and the veteran did not
file a timely notice of disagreement regarding this
determination; therefore, it is final. 38 U.S.C.A. § 7105
(West 2002).
Under applicable criteria, a claim that is the subject of a
prior final denial may be reopened if new and material
evidence is received with respect to that claim. If the
claim is thus reopened, it will be reviewed on a de novo
basis, with consideration given to all the evidence of
record. 38 U.S.C.A. §§ 5108, 7105 (West 2002); Evans v.
Brown, 9 Vet. App. 273 (1996); Manio v. Derwinski, 1 Vet.
App. 140 (1991). New evidence is defined as existing
evidence not previously submitted to the VA, and material
evidence is defined as existing evidence that, by itself or
when considered with previous evidence of record, relates to
an unestablished fact necessary to substantiate the claim.
New and material evidence can be neither cumulative nor
redundant of the evidence of record at the time of the last
prior final denial of the claim sought to be reopened, and
must raise a reasonable possibility of substantiating the
claim. 38 C.F.R. § 3.156(a) (2007).
The evidence that is considered to determine whether new and
material evidence has been received is the evidence received
since the last final disallowance of the appellant's claim on
any basis. Evans v. Brown, 9 Vet. App. 273 (1996). This
evidence is presumed credible for the purposes of reopening
the appellant's claim, unless it is inherently false or
untrue, or if it is in the nature of a statement or other
assertion, it is beyond the competence of the person making
the assertion. Duran v. Brown, 7 Vet. App. 216 (1995);
Justus v. Principi, 3 Vet. App. 510 (1992); see also
Robinette v. Brown, 8 Vet. App. 69 (1995).
As an initial matter, the Board notes the RO considered the
veteran's claim on the merits in July 2005, without
consideration of whether new and material evidence had been
submitted. Nevertheless, the Board must address the issue of
new and material evidence in the first instance because it
determines the Board's jurisdiction to reach the underlying
claims and to adjudicate the claims de novo. See Woehlaert
v. Nicholson, 21 Vet. App. 456, 460-61 (2007) (citing Barnett
v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996), aff'g 8 Vet.
App. 1 (1995)). If the Board finds that no such evidence has
been offered, that is where the analysis must end, and what
the RO may have determined in this regard is irrelevant.
Barnett, 83 F.3d at 1383. Further analysis, beyond the
evaluation of whether the evidence submitted in the effort to
reopen is new and material is neither required nor permitted.
Id. at 1384. Any finding entered when new and material
evidence has not been submitted "is a legal nullity."
Butler v. Brown, 9 Vet. App. 167, 171 (1996) (applying an
identical analysis to claims previously and finally denied,
whether by the Board or the RO). See Jackson v. Principi,
265 F.3d 1366, 1369 (2001) (the statutes make clear that the
Board has a jurisdictional responsibility to consider whether
it was proper for a claim to be reopened, regardless of
whether the previous action denying the claim was appealed to
the Board).
In the present case, the veteran has submitted additional
medical evidence in support of his application to reopen. He
has also claimed service connection on a new and different
basis, as secondary to a service-connected disability.
Service connection may be awarded for any disability which is
due to or the result of, or is otherwise aggravated by, a
service-connected disability. 38 C.F.R. § 3.310 (2007);
Allen v. Brown, 7 Vet. App. 439 (1995). For the reasons to
be discussed below, at least some of this evidence is new and
material, and his claim may be reopened for consideration on
the merits.
First, the veteran has submitted additional private and VA
medical evidence which confirms a current disability of the
neck and upper extremities. October 2001 and June 2005
private MRI reports note spinal stenosis, osteophyte
formation, disc space narrowing, and degenerative changes of
the cervical spine. A June 2005 EMG study confirmed abnormal
neurological responses in the right hand, and in April 2007,
he was seen by VA for pain and spasms in both hands. The
Board also notes the veteran's spouse stated at his September
2007 hearing that she is a retired licensed practical nurse
(LPN), and she believed the veteran's arthritis had spread to
his cervical spine and hands from his lumbosacral spine.
The Board notes first that this medical evidence is new, in
that it was not of record at the time of the July 2002
denial. Additionally, it is not cumulative and redundant of
evidence already of record, as it suggests both that the
veteran has current disabilities of the cervical spine and
upper extremities, and that these are possibly related to his
service-connected low back disability. No such evidence was
of record at the time of the prior denial, when the RO found
no nexus between a current disorder of the neck or hands, and
an in-service disease or injury. Additionally, the veteran
did not argue, and the RO did not consider, the claim of
entitlement to secondary service connection. Next, because
this evidence establishes a current disorder of the neck and
hands that may be related to service, it is material, as it
relates to an unestablished fact necessary to substantiate
the claim. Additionally, this evidence, when considered with
the remainder of the record raises a reasonable possibility
of substantiating the claim at issue.
Based on the above, the Board finds aforementioned medical
evidence to be both new and material evidence. The veteran
having submitted new and material evidence, his service
connection claim for arthritis of the cervical spine and
hands must be reopened and considered on the merits.
38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2007).
ORDER
New and material evidence having been received, the veteran's
service connection claim for arthritis of the cervical spine
and hands is reopened.
REMAND
The veteran's service connection claim for arthritis of the
cervical spine and hands having been reopened, it may now be
considered on the merits. However, the Board finds
additional development is required prior to final
adjudication. The veteran has submitted sufficient medical
evidence to trigger VA's duty to assist him in the
development of his claim. VA is obligated to make reasonable
efforts to assist a claimant in obtaining evidence necessary
to substantiate his claim. 38 U.S.C.A. § 5103A (West 2002 &
Supp. 2007). VA's duty to assist includes providing a
medical examination and/or obtaining a medical opinion when
such an examination becomes necessary to substantiate the
claim. 38 U.S.C.A. § 5103A(d) (West 2002 & Supp. 2007).
The Board also observes that 38 C.F.R. § 3.310, the
regulation concerning secondary service connection, was
amended effective October 10, 2006. See 71 FR 52744-47,
(Sept. 7, 2006). The intent was to conform the regulation to
Allen v. Brown, a U.S. Court of Appeals for Veterans Claims
(Court) decision that clarified the circumstances under which
a veteran may be compensated for an increase in the severity
of an otherwise nonservice-connected condition caused by
aggravation from a service-connected condition. Any increase
in severity of a nonservice-connected disease or injury that
is proximately due to or the result of a service-connected
disease or injury, and not due to the natural progress of the
nonservice-connected disease, will be service connected.
However, VA will not concede that a nonservice-connected
disease or injury was aggravated by a service-connected
disease or injury unless the baseline level of severity of
the nonservice-connected disease or injury is established by
medical evidence created before the onset of aggravation or
by the earliest medical evidence created at any time between
the onset of aggravation and the receipt of medical evidence
establishing the current level of severity of the nonservice-
connected disease or injury. See 38 C.F.R. § 3.310 (2007).
Accordingly, the case is REMANDED for the following action:
1. The veteran should be afforded a VA
orthopedic examination for the purpose of
evaluating his claimed arthritis of the
cervical spine and hands. The claims file
must be furnished to the examiner for
review in connection with the examination,
and the examiner should state for the
record that the claims file was reviewed.
All necessary diagnostic tests, as
determined by the examiner, should be
completed and all pertinent symptomatology
and findings should be reported in detail.
After fully examining the veteran and
reviewing his medical history, the
examiner should state whether arthritis or
any other disability of the cervical spine
and/or hands is present. For any current
disability found, the examiner should
state, based on a review of the claims
file and the examination findings, the
medical probabilities (less likely than
not; at least as likely as not; or more
likely than not) that any such disability
is proximately due to or permanently
aggravated by, the veteran's service-
connected low back disability. If the
examiner finds that a service-connected
disability aggravated an existing
orthopedic disease or injury, then the
examiner should express an opinion as to
what level of disability is attributable
to such aggravation. The examiner should
provide a complete rationale for all
conclusions reached.
2. When the development requested has
been completed, the issue of service
connection for arthritis of the cervical
spine and hands should again be reviewed
by the RO on the basis of any additional
evidence received. If the benefit sought
on appeal remains denied, the appellant
and his representative should be furnished
a supplemental statement of the case and
be afforded a reasonable opportunity to
respond before the record is returned to
the Board for further review.
The Board intimates no opinion, either legal or factual, as
to the ultimate outcome of this case. The appellant has the
right to submit additional evidence and argument on the
matter or matters the Board has remanded. Kutscherousky v.
West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007).
______________________________________________
WILLIAM YATES
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs